Adding privacy to Patriot

By Steve Lilienthal
web posted August 11, 2003

Immediately after 9/11, many conservatives were understandably
worried first and foremost about national security. This concern
was shared by virtually all Americans whatever their political
beliefs. In response, the Congress rushed through the legislation
that came to be known as the USA-Patriot Act.

Now, after nearly two years of having had the USA-Patriot Act
on the books, thoughtful conservatives are taking a needed
second look at what Congress had passed so hastily that
legislators were not provided with enough time to read the
legislation so they could understand what they were voting on.

Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR)
have introduced S. 1552 -- the Protecting the Rights of
Individuals Act (PRI Act) that offers a prudent, mid-course
correction of the USA-Patriot Act.

It is highly debatable whether the United States has really been
made more secure by passage of the USA-Patriot Act. The
recent report by the joint House and Senate intelligence
committees made clear that the "Intelligence Community failed to
capitalize on both the individual and collective significance of
available information that appears relevant to the events of
September 11...the Intelligence Community, for a variety of
reasons, did not bring together and fully appreciate a range of
information that could have greatly enhanced its chances of
uncovering and preventing Usama Bin Ladin's plan to attack
these United States on September 11, 2001."

The draconian powers granted the Federal Government's law
enforcers do not guarantee better coordination between law
enforcement and intelligence agencies, one of the prime reasons
why the 9/11 plot was not foiled.

What is very clear to privacy advocates is that key provisions of
the USA-Patriot Act were too sweeping. overturning time-
honored constitutional liberties. Many of the USA-Patriot Act's
provisions were so vaguely worded that they lowered the
standards necessary to investigate alleged wrongdoing and the
definitions of wrongdoing could easily be applied not to
international terrorism but whatever the Federal authorities
defined as domestic terrorism. Nor was there accountability in
terms of requiring law enforcement to report to Congress and the
American people how they were
employing their newly granted powers. 

One important measure that the PRI Act seeks to reform is the
so-called "sneak and peek" provision" that turned the Fourth
Amendment on its head. While many provisions of the USA-
Patriot Act have a sunset clause, this is one that does not come
up for review by Congress in 2005.

The Fourth Amendment clearly states: "The right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated; and no
warrants shall issue, but upon probable cause, supported by oath
or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."

Under the USA-Patriot Act's Section 213 the police no longer
had to provide prior warning before searches of personal
property were executed. More troubling, the provision applied
to any and all warrants and court
orders, even those in cases that did not involve terrorism. 

The PRI Act does not end "sneak and peek" searches.
However, it makes clear that delayed notification is permitted
only in certain circumstances: 1.) when an act dangerous to
human life constitutes a federal crime of terrorism; 2.) if
simultaneous notification would endanger the life or physical
safety of an individual, 3.) or if it could result in flight from the
prosecution, or result in the destruction of or tampering with the
evidence sought under the warrant.

Furthermore, in cases where notification of a search is delayed,
the PRI Act requires a finite date for informing the person whose
property was examined. As written now, the notification is
vaguely defined as "a reasonable period of its execution." With
the PRI Act, that period is defined as seven calendar days after
the search which can even be extended if the court has been
provided reason to believe by law enforcement that earlier
notification could endanger the life or safety of a victim.

Conservative activists should welcome the PRI Act's
modification of the definition of domestic terrorism. The USA-
Patriot Act's definition was so broadly written that it covered any
act considered to be dangerous to human life that violated
federal or state criminal law, even misdemeanors! Could
bumping someone on the head with a picket sign be interpreted
as engaging in domestic terrorism? Given overzealous law
enforcement and the way the USA-Patriot Act is currently
written, the answer is yes!

Conservatives had good cause to worry that even membership in
organizations such as Operation Rescue or property rights and
gun owner groups could be defined by an unfriendly
administration as belonging to groups engaged in domestic
terrorism.

The PRI Act more accurately redefines domestic terrorism as
only those acts considered dangerous to human life that are
defined only by Federal law as a crime of terrorism. [Nothing
would prevent states from enforcing their own laws regarding
terrorism and many states passed mini-USA-Patriot Acts.]

Section 215 of the USA-Patriot Act also proved troublesome to
privacy advocates based on its extremely low standard
permitting the FBI to search third party records under the
Foreign Intelligence Surveillance Act. Right now, they do not
need to demonstrate any connection to a foreign power, the
usual connection required by FISA. Library borrowing, store
and credit card purchases, and medical records are all fair game
for searches.

The PRI Act protects citizens from indiscriminate searches. The
FBI can still engage in searches provided that it tells the court
specifically why it believes that the records being sought either
involve a foreign power or someone who is a representative of a
foreign power.

The PRI Act also places a moratorium on data mining by any
Federal agency unless it has received specific Congressional
authorization to do so. This is important because data mining
could be used by law enforcement to try to identify potential
suspects based on hypothetical modeling of possible crimes.

Conservatives also worried that electronic surveillance and
electronic searches under FISA could be used for domestic
purposes. Before the USA-Patriot Act was signed into law,
when Federal law enforcement submitted a court order for a
search under FISA it had to be clearly specified that the purpose
was to obtain foreign intelligence. The USA-Patriot Act
weakened the standard to a significant purpose. Given that FISA
standards for searches and surveillance were already weaker
than what is required in criminal investigations, FISA orders
could be used for domestic law enforcement cases. Under the
PRI Act, the primary purpose of granting a FISA court order for
surveillance and searches must be to obtain foreign intelligence
information. This does not prevent information that is obtained
under such a court order to be used in a criminal case too should
it be appropriate.

America's founding fathers expressed concern about vesting too
much power with a centralized government that did not have
adequate checks and balances. Concepts such as appropriately
stringent standards for searches by law enforcement and
intelligence authorities and judicial review have long been
important to our legal system. They are necessary checks to
ensure our nation's law enforcers do not engage in vendettas
based on whim, but there are specific processes that must be
respected. As conservatives have made clear, the worry is not
that the Bush Administration will take the powers granted under
the USA-Patriot Act to challenge domestic political activists not
to their liking. But what about an administration that has a
disregard for the Constitution and much less scruples?
 
Conservatives who care about preserving our constitutional
liberties and protecting privacy rights will find the Protecting the
Rights of Individuals Act that is to their liking. It is a necessary
and prudent rewrite of the USA-Patriot Act that respects the
need of Federal law enforcement to have enhanced powers to
fight the War on Terrorism while providing the necessary
safeguards to protect the constitutional liberties and privacy of
American citizens. An oft-expressed thought holds that the
terrorists would achieve their greatest victory by undermining the
freedom that has been so vital in the success of the American
Experiment. The PRI Act ensures a proper balance can be
struck between our country's obvious national security concerns
and the protection of our valued constitutional liberties.

Steve Lilienthal is a policy analyst with the Free Congress
Foundation. (www.freecongress.org)

Enter Stage Right -- http://www.enterstageright.com